The MK party says the alleged harassment of Vusi Mhlongo caused delays in it filing court papers in its electoral case (Darren Stewart/Gallo Images via Getty Images)
Counsel for the ANC told the Durban high court on Thursday it had a right to stop the “continuing wrong” of the use of the logo and the name of its defunct armed wing by Jacob Zuma’s uMkhonto weSizwe (MK) party.
“As long as the mark is being used, there is harm,” advocate Gavin Marriott said in an application for leave to appeal the court’s April ruling dismissing its bid for an urgent interdict barring the MK party from using the iconic logo of a warrior with a spear.
Marriott was refuting an argument by Dali Mpofu SC, for the MK party, that the alleged harm the ANC was trying to prevent was no longer at issue because the May elections were in the past.
Mpofu said Marriott was impermissibly trying to introduce an argument from the bar that was absent from the papers the ANC had filed in its application to the court because these had focused only on the run-up to the vote.
“They deal with the present, as in pre-May 29, and then they even deal with the past but they don’t deal with the future. That is the death of this application,” he argued.
“The matter is moot on these papers, the elections have come and they’ve gone, people are in legislatures everywhere.”
The ANC had pleaded urgency in its initial high court application, filed four months before elections, on the basis that time was of the essence to prevent voter confusion.
“Millions of voters will know that the name uMkhonto weSizwe, [it] and its logo are synonymous with the history of the ANC, and in so doing, they are likely to cast a vote for the MKP while believing that they are in fact voting for the ANC.”
The use of both the name and the logo was likely to “deceive” the public into thinking that there was a connection between the ANC and the new party founded by Zuma.
“Deliberate acts to cause voter confusion erode free and fair elections,” the party argued.
The application was dismissed by Justice Mahendra Chetty in April.
On Thursday, Marriott told the court the ANC had a reasonable prospect of a different outcome on appeal and believed it deserved an order barring the MK party, now the country’s official political opposition, from using both its registered name and logo.
“We would require them to change the name and the logo.”
He said it was not correct that the issue had become moot or that the case was limited to the harm that might ensue in the elections.
“It is a case based on a continuing wrong which we say merits the attention of an appeal court.”
Chetty asked Marriott to point him to the passages in the ANC’s founding affidavit which showed that the case was concerned with ongoing future infringement.
Marriot replied: “That is a self-evident proposition because for so long as the mark is continuing to be used there is continuing harm. Trademark infringement does not go away because the elections have passed.
“It is about the continued association between the MK party and the ANC and its history.”
He added that Zuma was on record as saying that voting for his party was a vote “to rescue the ANC from the outside”. At the time, the former president was wearing a T-shirt bearing the disputed logo, Marriott said, adding that conduct on the part of the MK party was not going to stop.
Marriott, an expert in intellectual property law, said Chetty’s April ruling marked the first time, to his knowledge, that a high court had held that it lacked the jurisdiction to decide a trademark infringement dispute and this alone was an error that entitled the ANC to leave to appeal.
“That has never happened before and we submit that, on that basis alone, there is at least a reasonable prospect that another court might differ with your view.”
Chetty asked whether this argument was not selective, because that particular finding was made in the context that this was an election matter that fell within the purview of the electoral court, which the ANC had approached at the same time as the high court.
“Effectively, what you would have been asking me to do was to split the matter to find that certain parts belong in the electoral court and that, on the same papers, this court had jurisdiction with the trade aspect.”
Marriott replied that it was his argument that Chetty had erred in that regard too.
“With respect, we differ strongly,” he said.
“The essence of your lordship’s finding was that because the ANC had raised this issue of the trademark in those electoral court papers, it on some basis now prevented it from bringing a trademark infringement in the high court.
“The fact that the ANC raised those objections in that forum does not serve to invest that forum with jurisdiction to determine the trademark jurisdiction.”
The second point, he said, was the high court could not accept that it holds jurisdiction to hear trademark cases but then decide not to exercise it because it believed that, in this instance, the electoral court should settle the matter.
“You can’t deny or refuse to exercise the jurisdiction which you admit to have simply because you think it would be better placed elsewhere — you are required to exercise it.”
In his April ruling, Chetty noted that section 20(2)(a) of the Electoral Commission Act empowers the electoral court to ”hear and determine an appeal against any decision of the commission” where it “relates to the interpretation of any law”.
The judge said this provision “puts an immediate brake on forum shopping” and concluded: “The ANC chose the wrong forum to assert its rights. This court has no jurisdiction.”
He further found that the ANC had failed to establish a clear right for relief, regarding either the name uMkhonto we Sizwe or the use of the logo.
He could not conclude that the MK party was likely to gain unfair advantage from the use of a symbol imbued with the reputation of the ANC or that it would probably lead a voter to conclude that there was a link between it and the ANC.
This was particularly so because, in its campaign, the MK party had cast itself as an alternative to the ANC.
“There can be no confusion, in my view, that will confront a voter in the sanctity of the voting booth, when confronted with the symbols of the ANC and the MKP,” Chetty said.
Chetty faulted the ANC for self-created urgency, saying it offered no cogent explanation for waiting until January to approach the high court after the Electoral Commission of South Africa (IEC) dismissed its appeal to the decision to register the MK party in November.
ANC secretary general Fikile Mbalula’s explanation that he needed to consult party structures was not a sound one, he said, because his position conferred on him the authority to act to defend the party’s interests.
The ANC case was complicated by the fact that Legacy Projects had, in 2014, acquired exclusive rights to the symbol associated with its armed wing for a period of 10 years.
But, in September last year, two weeks after the IEC registered the MK as a political party, the ANC entered into an agreement with Legacy Projects to acquire the rights.
Mpofu argued in court that the ANC could therefore claim no infringement at the actual time of registration a fortnight earlier, an argument he reiterated on Thursday.
The MK party applied for registration in July last year for use of the contested symbol and the application was published in the Government Gazette. The ANC did not make use of the 14-day period for public objections, later explaining that it only became aware of the application in August.
Instead, it lodged an appeal to the IEC some two weeks after it registered the MK party and asked it to reverse the decision on the basis that it infringed both its name and its trademark.
The appeal was dismissed in November.
The ANC then responded by filing simultaneous urgent applications to the electoral court and to the high court.
It argued that it needed to approach the high court because it was the only forum able to grant relief on trademark infringement, whereas the jurisdiction of the electoral court extended only to election matters.
The electoral court dismissed the ANC’s application in March, saying it had failed to make out a case for deregistering the MK party.
Mpofu said this ruling, which was handed down days before the pleadings in the high court, was lethal to the ANC’s case.
“How then can you get an order that is hinged on unauthorised use?” he asked.
“Once they have lost that, they cannot come before you and say with a straight face the use is unauthorised.”